In New Mexico, Doña Ana County Clerk, Lynn Ellins, has announced that his office has begun issuing marriage licenses to same-sex couples, beginning on the morning of Wednesday, 21 Aug 2013. (Doña Ana is home to Las Cruces, NM and is in the southern part of the state, right up next to the end of the Texas panhandle.)
Ellins says he made this decision after reviewing the opinion of New Mexico State Attorney General Gary King, who said the state’s de facto ban on same sex marriage is unconstitutional under both state and Federal law.
In a statement, Dona Ana County Clerk Lynn Ellins said that he carefully read the state laws and concluded that the “state’s marriage statutes are gender neutral and do not expressly prohibit Dona Ana County from issuing marriage licenses to same-gender couples.”
“Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act,” Ellins said. “Dona Ana County is upholding New Mexico law by issuing these marriage licenses, and I see no reason to make committed couples in Dona Ana County wait another minute to marry.”
A separate story on KOB News mentions that at this time 11 licenses were issued, although an attached photo indicates the couple shown is the 17th to be granted a license by the Doña Ana office. (Update: Reports are that 42 couples received licenses by 5pm, some traveling from other nearby counties and one couple from Albuquerque. Ellins says he will continue to have his office issue licenses from now on unless ordered to stop by a judge.)
In a late-breaking development, State AG Gary King has said he will not challenge the action, and in fact will choose not to intervene or seek an injunction should any other county clerk anywhere in New Mexico decide to join Doña Ana county in issuing same-sex marriage licenses. King did warn however that these marriages could be invalidated if the State Supreme Court rules against marriage equality in the several pending cases.
This move came a day after a Santa Fe couple asked the NM Supreme Court to expedite handling of their challenge to the state’s current ban and refusal to recognize same-sex marriages. Previously, King had offered his opinion, but asked the county clerk offices to refrain from acting on it. This new position is a reversal.
Predictably, New Mexico’s Governor Susana Martinez has expressed her belief that marriage is supposed to be limited to heterosexual couples only and repeated her preference if there’s to be any change in the law, it be done not through the courts or even the legislature, but by popular vote.
New Mexico is unique in its legal situation vis a vis marriage equality. The state has a number of LGBT non-discrimination laws in place, including a ban on discrimination “in matters of employment, housing, credit, public accommodations and union membership.” There is also a state-level hate-crimes law covering sexual orientation and gender identity.
Unlike nearly every other state that does not recognize same-sex marriages, New Mexico does not have an explicit legal ban. That is, there is no law or constitutional amendment defining marriage as “only between one man and one woman.” Moreover, state law is entirely gender-neutral in its definition of who can enter into a legally valid marriage. The only exception to this is another law that defines the marriage license application form.
To further complicate matters, state law explicitly requires recognition of any legally enacted marriage, performed in any other state or country, subject to a short list of excluded marriages. These include under-age marriages, forced marriages, polygamous or group marriages, and so on. Conspicuously missing from that list: Same-sex marriages.
You’d think that would mean of course New Mexico recognizes same-sex marriages. I’ve even seen news accounts get this wrong, claiming that even if they’re not performed here, the state recognizes out-of-state same-sex marriages.
At this time, New Mexico does not recognize same-sex marriages, no matter where they were performed. Hence although it is not an explicit legal ban, it remains a de facto ban. However the legal reasoning upon which this particular state policy lies is obviously very shaky. The only thing standing in the way of marriage equality is legal inertia, and the time it takes for the court challenges to be heard and ruled upon.
There is at this time no state where there is a greater likelihood — or at least the strong possibility — of a judicial ruling in favor of marriage equality rights.